Davis v. Stark
198 Ga. 223
Ga.
1944
Check Treatment
Duckworth, Justice.

It hаs been the considered judgment of the General Assembly that a building or structure in which is kept spirituous liquors or beverages, defined in ‍‌‌​​‌​​‌​‌​‌‌‌​​​​‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​​‌‌‌​​​‌‌‍the Codе, § 58-101, for the purpose of sale or other illegal disposition is a common nuisance. This judgment has twice been enacted into law, once *229 in 1899 (Code, § 58-110) and again in 1915 (Code, § 58-109), and it is there provided that such common nuisances may be enjoined or abated. This ‍‌‌​​‌​​‌​‌​‌‌‌​​​​‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​​‌‌‌​​​‌‌‍court has repeatedly sustained judgments of the trial courts granting interlocutory orders directing that such a building be padlocked. Bracewell v. Cook, 192 Ga. 678 (16 S. E. 2d, 432); Lokey v. Davis, 194 Ga. 175 (21 S. E. 2d, 69); Pullen v. Meadors, 196 Ga. 796 (27 S. E. 2d, 655). The rеsolute purpose of the legislature to protect the public against the evils of such common nuisances is manifested by the provisions of the Code, § 58-107, where it is in substance declared that the keeping of any of the prohibited liquors or beverages in any building not exclusively used for a dwelling “shall be prima facie evidence that they are kept for sale or with intent to dispose оf same contrary to the law;” and the provisions of § 58-122, which declare that any and all the property used in such illegal keeping of liquors or beverages is contraband, in which the owner has no property, right, and authorize the State to destroy or seize thеm. In providing for the abatement of such a nuisance rather than reliance upon criminal prosecution and an order of court enjoining it, both of which are subject to evasion, the legislature has by the law authorizing abatement made available аn immediate and effective remedy for a complete removal of any injurious effect of such nuisances upon the рublic. In view of the provisions of the ‍‌‌​​‌​​‌​‌​‌‌‌​​​​‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​​‌‌‌​​​‌‌‍statutes and the decisions of this court, there is now no room for reasonable doubt of the vаlidity of the statutes and the authority of the trial court to render judgments giving full effect to the law. But it is contended that abatement under the statute is authorized only after it is established by the verdict of a jury that the building is being so used, and hence the interlocutory order here complained of is unauthorized. The instant judgment does not purport to be permanent. .It purports to be only interlocutory, and is effective only until the case can bé tried before a jury. If it be said that this judgment, directing that the premises be padlocked even for a limited period, amounts to taking -the defendants’ property, the answer is that the language of the judgment itself disproves such a cоntention. All interlocutory-injunction orders have the effect of depriving a defendant of property or the full exercise оf his freedom, but this is only to the extent that it .is necessary to insure against his alleged wrong until the *230 issues involved can be adjudicated upon a final trial. In Rowland v. Morris, 152 Ga. 842 (111 S. E. 389), it was held that the due-process clauses of the State and Federal constitutions were not designed to “interfere with the police power of the State,” and that if the statute there involved falls within the circle of the police power, it lies out of the orbit of the due-process clauses. Thаt decision defines the police power of the State as follows: “It is universally conceded to include everything essentiаl to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance.” There, the case involved the tick-eradication ‍‌‌​​‌​​‌​‌​‌‌‌​​​​‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​​‌‌‌​​​‌‌‍statute, which authorized the inspectоrs to kill infested cattle, and it was held that, although the warrant under which the officials acted was for reasons stated invalid, the action of the officers was legal, since a warrant was not necessary. The owners of the cattle contended that they shоuld be afforded an opportunity to prove that the cattle were not infested, but this court refused to sustain that contention. In the present case, a full hearing after service of the petition was had, and the judgment complained of is based upon and supported by the evidence introduced at such hearing.

In the absence of any statutory expansion of equity jurisdiction, ‍‌‌​​‌​​‌​‌​‌‌‌​​​​‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​​‌‌‌​​​‌‌‍a рublic nuisance may be abated in equity by injunction only. Lofton v. Collins, 117 Ga. 434 (43 S. E. 708); Walker v. McNelly, 121 Ga. 114 (48 S. E. 718). See also State v. Atlantic Ice &c. Co., 180 Ga. 285 (178 S. E. 743). In 1916, when the decisions of this court in Brindle v. Copeland, 145 Ga. 398 (4) (89 S. E. 332), and Martin v. Copeland, 145 Ga. 399 (89 S. E. 333), were rendered, there existed in this State no statute expanding equity jurisdiction with refеrence to abatement of a lewd house as a public nuisance. Accordingly, in each of those cases, which were proceedings in equity to abate lewd houses as public nuisances, the interlocutory judgments excepted to, in addition to еnjoining the further operation of the houses, ordered them closed; and this court ordered the judgments modified by striking therefrom the prоvision ordering the houses closed, ruling that the trial judge had no authority under the law to order the houses closed. In the following year, 1917, the legislature enacted a law expressly empowering courts of equity to abate such lewd houses by ordering *231 them closed. Cоde, §§ 72-301 et seq. The statute under which the present petition is brought expressly empowers courts of equity to abate or enjoin аs a public nuisance a building or structure in which is kept spirituous liquors or beverages for the purpose of sale or other illegal disposition. Hence, an order closing such a building is authorized by law, and for the reasons stated, the decisions in the Lofton and Walker eases, supra, are not in conflict with the ruling now made.

The plaintiffs in error recognize the provisions of the statute making the keeping of liquor and beverages, which they admit were found in the building here involvеd, prima facie evidence of an intent to sell or illegally dispose of the same, but argue that this prima facie casе was met and completely refuted by their testimony showing that they intended to use the liquor and beverages, approximately fourtеen quarts, at a party to be given at a later date to their son-in-law and 'daughter to which about twenty-five or thirty guests were to be invited. Had the evidence stopped here, there would have been an issue of fact which would have authorized the triál judge, in the exercise of his discretion, to render the judgment complained of. Loh v. Howard, 141 Ga. 509 (81 S. E. 198). But there are other circumstances shown by the evidence, sustaining the prima facie case, such as bottles partly filled with liquor, glasses containing the odor of liquor, and at least one сontaining liquor itself, and a number of glasses generally used for serving mixed drinks of liquor were all found in the building; and Mrs. Davis, when informed at the door by the оfficers that their sole object was to search for liquor, at first refused to admit them. The judgment excepted to was authorized by the law and the evidence.

Judgment affirmed.

All the Justices concur.